The Full Furies Have Been Released

From William McGurn:

In the heady days since Anthony Kennedy unearthed a constitutional right for Americans “to define and express their identity,” the extravagance of the Supreme Court’s claim has taken some by surprise. It shouldn’t have. In finding for same-sex marriage the way he did, Justice Kennedy made official what he made inevitable a quarter-century back.

That was in 1992. The occasion was a Supreme Court decision on abortion into which Mr. Kennedy inserted a new definition of liberty. Where Thomas Jefferson had grounded human liberty in self-evident truth, Mr. Kennedy holds that the mere self suffices.

“At the heart of liberty,” he wrote, “is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”

Now he has followed through. In Obergefell v. Hodges, the court substitutes for the laws passed by the people acting through their state legislatures a new constitutional right to “dignity” based on the court’s “better informed understanding.”

Back when poor Harry Blackmun in Roe v. Wade established a right to privacy that likewise appears nowhere in the Constitution, he wrote under the conceit that his decision would resolve the issue once and for all. Instead, his 1973 ruling launched the culture wars.

Obergefell is Roe on steroids. Roe legalized a market for abortion for those who wanted them and those who provided them. It was qualified by conscience protections plus riders attached to federal legislation greatly limiting the use of taxpayer dollars to underwrite the practice. So Roe didn’t demand much of those on the other side—or on the sidelines.

Obergefell is another thing altogether. In one of the great flimflams of American life, it is a prescription for endless litigation smuggled in under libertarian clothing. This began with the opening question put to all those who held the classic view of marriage: What can it possibly matter to you, they were asked, if two men or two women who love each other call their relationship marriage?

We learned that it matters a great deal.

It matters to Brendan Eich, who was forced to resign last year as CEO of the company he co-founded after it became public that he had donated $1,000 to Proposition 8, the successful California ballot measure banning same-sex marriage.

It matters to Chick-fil-A, which in 2012 saw the mayors of Chicago and Boston declare the restaurant chain had no place in their cities because its chief executive held the same view of marriage that Barack Obama held until very recently.

It matters to Catholic Charities, which in several states has been forced out of the adoption business either because the charity does not offer same-sex spousal benefits or declines to place children for adoption with same-sex couples.

It matters for cake bakers, photographers, florists, jewelers and pizza-parlor owners who happily serve gay customers but draw the line at assisting gay weddings.

Finally, it matters to all religious schools and religious institutions. Give the Obama administration its due: The president’s solicitor general admitted during the Obergefell oral argument that a victory for same-sex marriage would put the tax-exempt status of such institutions on the chopping block.

The reason for all this is that the right for men to marry men or women to marry women is only half of the equation—and not even the most important half at that.

The other half involves antidiscrimination statutes and regulations, not to mention the discretion of federal, state and even private bureaucracies regarding everything from funding and accreditation to tax exemption.

In short, there is nothing live-and-let-live about the way this movement has operated the past few years, and to pretend otherwise requires a willful blindness. Now, with Obergefell, the full furies have been released.

As Justice Samuel Alito suggested in his dissent, thousands of Americans who never dreamed that the issue would affect them will soon get highly personal lessons in how the legalization of same-sex marriage by judicial fiat threatens their schools, their institutions and even their livelihoods. This is not your father’s culture war.

A century ago, another Supreme Court justice famously wrote that the Constitution “is made for people of fundamentally differing views.” How far we have traveled since.

Those seeking to crush all dissent from the new judicial orthodoxy on marriage will not always win, not least because the right to the free exercise of religion—in bald contrast to Mr. Kennedy’s right to dignity—is in fact in the Constitution. Still, however individual cases may turn out, by foreclosing the option for democratic debate and compromise the Supreme Court has ensured a bitter national harvest.

Welcome to Justice Kennedy’s world. Where upholding the Kennedy definition of liberty—the right to define your own truth—turns out to mean denying that same right to millions of Americans who define marriage and truth in a way different from his.

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The Despotism of an Oligarchy

From Edward Mechmann:

In 1820, Thomas Jefferson wrote a letter to a prosperous merchant, in which he discussed his views about the proper role of the judiciary in the American constitutional system. In his letter, Jefferson made a famous observation:

You seem … to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy.

In his first inaugural address in 1861, Abraham Lincoln echoed these sentiments, in reference to the Supreme Court’s infamous decision in the Dred Scott case:

… the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court … the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.

In 2015, it is now more clear than ever, that Jefferson’s and Lincoln’s predictions have been fulfilled, most recently with the latest ruling on the redefinition of marriage.

[…]

Little needs to be said about this latest decision by the Court. This Court has a propensity to make things up as they go along, to satisfy their policy preferences or to follow public opinion. Reasoned legal argumentation really has no great sway over the Court on these issues, so there’s no reason to treat their decision as if it had anything to do with law at all.

There is no question that over the past few years, public opinion has shifted strongly in favor of redefining marriage. But the resolution of such a weighty policy argument should not be left to the least democratic branch of the government. It should be hashed out in the rough and tumble of politics. That is what was happening, prior to the Supreme Court’s first usurpation, in the Windsor case. But democracy is apparently no longer an option, when the post-modern Zeitgeist of sexual liberationism demands its way.

And so, we should really stop pretending. When it comes to certain important issues about the nature of the human person and our society, we really no longer have a rule of law or of reason, but a rule of lawyers — a majority of five, to be precise, all of whom attended a few elite Eastern law schools. Jefferson’s fear of the despotism of an oligarchy has fully come true.

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Less Policing = More Crime

From Thomas Sowell:

Baltimore is now paying the price for irresponsible words and actions, not only by young thugs in the streets, but also by its mayor and the state prosecutor, both of whom threw the police to the wolves, in order to curry favor with local voters.

Now murders in Baltimore in May have been more than double what they were in May last year, and higher than in any May in the past 15 years. Meanwhile, the number of arrests is down by more than 50 percent.

Various other communities across the country are experiencing very similar explosions of crime and reductions of arrests, in the wake of anti-police mob rampages from coast to coast that the media sanitize as “protests.”

None of this should be surprising. In her carefully researched 2010 book, “Are Cops Racist?” Heather Mac Donald pointed out that, after anti-police campaigns, cops tended to do less policing and criminals tended to commit more crimes.

If all this has been known for years, why do the same mistakes keep getting made?

Mainly because it is not a mistake for those people who are looking out for their own political careers. Critics who accuse the mayor of Baltimore and the Maryland prosecutor of incompetence, for their irresponsible words and actions, are ignoring the possibility that these two elected officials are protecting and promoting their own chances of remaining in office or of moving on up to higher offices.

Racial demagoguery gains votes for politicians, money for race hustling lawyers and a combination of money, power and notoriety for armies of professional activists, ideologues and shakedown artists.

So let’s not be so quick to say that people are incompetent when they say things that make no sense to us. Attacking the police makes sense in terms of politicians’ personal interests, and often in terms of the media’s personal interests or ideological leanings, even if what they say bears little or no resemblance to the facts.

Of course, all these benefits have costs. There is no free lunch. But the costs are paid by others, including men, women and children who are paying with their lives in ghettos around the country, as politicians think of ever more ways they can restrict or scapegoat the police.

The Obama administration’s Department of Justice has been leading the charge, when it comes to presuming the police to be guilty — not only until proven innocent, but even after grand juries have gone over all the facts and acquitted the police.

Not only Attorney General Holder, but President Obama himself, has repeatedly come out with public statements against the police in racial cases, long before the full facts were known. Nor have they confined their intervention to inflammatory words.

The Department of Justice has threatened various local police departments with lawsuits unless they adopt the federal government’s ideas about how police work should be done.

The high cost of lawsuits virtually guarantees that the local police department is going to have to settle the case by bowing to the Justice Department’s demands — not on the merits, but because the federal government has a lot more money than a local police department, and can litigate the case until the local police department runs out of the money needed to do their work.

By and large, what the federal government imposes on local police departments may be summarized as kinder, gentler policing. This is not a new idea, nor an idea that has not been tested in practice.

It was tested in New York under Mayor David Dinkins more than 20 years ago. The opposite approach was also tested when Dinkins was succeeded as mayor by Rudolph Giuliani, who imposed tough policing policies — which brought the murder rate down to a fraction of what it had been under Dinkins.

Unfortunately, when some people experience years of safety, they assume that means that there are no dangers. That is why New York’s current mayor is moving back in the direction of Mayor Dinkins. It is also the politically expedient thing to do.

And innocent men, women and children — most of them black — will pay with their lives in New York, as they have in Baltimore and elsewhere.

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The Left Won’t Let the Amtrak Tragedy Go to Waste

From Charles C. W. Cooke:

It took just a few sorry hours for the news to become politicized. On Tuesday evening, we were told of a tragedy. An Amtrak train running between New York City and Washington D.C. had derailed disastrously at Philadelphia, killing eight and wounding two hundred. By Wednesday morning, tragedy had become transgression. Speaking from the White House, press secretary Josh Earnest explained that he didn’t know for sure why the train had crashed, but that it was probably the Republicans’ fault. “We have seen a concerted effort by Republicans for partisan reasons to step in front of those kinds of advancements” that would have prevented crashes such as this one, Earnest proposed slyly. His message: “Yeah, the conservatives did it.”

Before long, this theory had become omnipresent on the Left. At PoliticsUSA, Sarah Jones complained that, “gambling with Americans lives,” “reckless Republicans” were planning to respond to the “deadly derailment with more proposed cuts to Amtrak.” At MSNBC meanwhile, erstwhile transportation expert Rachel Maddow contrived to play Sherlock Holmes. “There’s no mystery about this disaster in Philadelphia,” Maddow submitted, ‘and there will be no mystery when it happens again.” The culprit, she proposed, was a lack of infrastructure spending. “This is on Congress’s head.” Not to be outdone, Mother Jones got in on the act, too: “The Amtrak Crash,” Sam Brodey declared excitedly, “Hasn’t Stopped Republicans From Trying to Cut Its Funding.” Well, then.

In all cases, the implication was clear: The dead were dead and the injured were injured because old rails had buckled under new weights; because underserviced wheels had locked up and given out; because the electrical wires that undergird the information systems had finally disintegrated and gone back to seed. Thus was a new tragedy ghoulishly recruited to an old cause. Rare is the day on which we are not told that America’s bridges are crumbling and that its roads are cracking, and that selfish and unimaginative politicians in Washington are rendering the United States as a shadow of its former self. Rare, too, is the day on which it is not asserted by someone that if we would just have the good sense to funnel more money to our favorite groups, we would be able to escape our present economic mess. With the news of a terrible crash, the would-be spenders were given a chance to wave the bloody shirt and to put a face on an agenda. Disgracefully, they took it.

In a sensible world, this execrable line of inquiry would have been abandoned at the very moment that it was revealed that the train had been traveling at almost twice the rated speed limit when it flew off the tracks, and thus that physics, not funding, was the proximate cause of the crash. But, alas, we do not live in a sensible world. And so, rather than conceding that we should treat the questions of infrastructure spending and of Amtrak’s subsidies separately from the questions surrounding this incident, the partisans scrabbled around to find an alternate — and conveniently non-falsifiable — theory: To wit, that if more money had been available to Amtrak’s engineers, they would probably have been able to find a way of saving the deceased. Never mind that the money is already there, but is being spent elsewhere; never mind that the reason that existing “crash-preventing” technology has not been implemented has more to do with “unique” “logistical challenges” than with an absence of funding; never mind that new technology is as capable of failing as old technology. If Amtrak had just had some more money in the bank, something would have been different. If we had rendered unto Caesar what his acolytes had demanded, the laws of physics would have smiled more kindly on the Northeast.

At the Federalist yesterday, Molly Hemingway argued persuasively that this sort of magical thinking is ultimately born of a peculiar form of secular theodicy, in which money has taken the place of piety and in which all accidents, hiccups, and human mistakes can be blamed squarely upon the unwillingness of the American taxpayer to pay their April tithes with alacrity. On Twitter, Red State’s Erick Erickson concurred, writing pithily that “the leftwing reaction to the Amtrak derailment” reminded him of televangelist “Pat Robertson’s reaction when a hurricane hits somewhere.” There is, I think, a great deal of truth to this. In our debates over education, healthcare, energy, and . . . well, pretty much everything, the progressive instinct is invariably to call for more money, regardless of the nature of the problem at hand. Naturally, there is a cynical pecuniary aspect to these entreaties: behind every “for the children” plea, it seems, is a union that is looking to get its claws into your wallet. But there is also a bloody-minded refusal to accept the world as it really is. We do not, pace Thomas Paine, “have it in our power to begin the world over again,” and we never will — however many zeroes the Treasury is instructed to scrawl on its checks. Accidents happen. Humans err. Evil prevails. Perfection is a pipe dream. The question before us: How do we deal with this reality?

On the left, the usual answer is to deny that there is any such reality. Just as conspiracy theorists prefer to take shelter in the comforting belief that 9/11 was the product of omnipotence and not of the unavoidable combination of evil, luck, and incompetence, the progressive mind tends to find calm in the heartfelt conviction that if we adjust our spreadsheets in the right way — and if we elect the correct people to public office — we will be able to plan and spend and cajole our way into the establishment of a heaven on earth. Thus did the arguments yesterday so dramatically shift and bend in the wind. Thus were their progenitors willing to say anything — yes, anything — in order to avoid the conclusion that the world can be a scary and unfair place and that there is often little we can do it about. The crash was caused by a lack of infrastructure spending that has left the railways in a dangerous shape! No, it was caused by a lack of interest in finding a way to prevent human error! No, it was caused by a general American unwillingness to invest in the sort of trains they have in Europe or Japan! Republicans did it! Midwesterners who don’t use trains did it! The rich did it! Quick, throw money at the problem, and maybe it’ll go away!

Throwing money at a problem is not always the wrong thing to do, of course. But one has to wonder where the limiting principle is in this case. There is no department or organization in the world that would struggle to find a use for more cash were it to become available. If our standard is a) that more funding might potentially equal less death, and b) that all death must inevitably be assuaged by more funding, we will soon run out of treasure. Alternatively, if the conceit is less absolute — i.e. if we accept that we do not have infinite resources and that this debate is there about priorities — one will still have to question the choices that Amtrak’s boosters would have us make. To support federal spending on Amtrak is by definition to suppose that every dollar spent on the trains is money that could not be spent better elsewhere: not by taxpayers; not by businesses; not by other parts of the government; not on paying down the debt; not on anything else on this earth. This, naturally, is highly debatable. Per the agenda-less, data-driven denizens of Vox, Americans today are 17 times more likely to be killed in a car accident and 213 times more likely to be killed on a motorcycle than they are to be killed on a train. Trains, in other words, are relatively safe. That being so, one has to ask why anybody would advocate increasing the train budget. By rights, shouldn’t that money be going to General Motors or to Harley Davidson or to the various DMVs up and down the land? Shouldn’t it be “invested” in areas where it will be 17 and 213 times more useful? If it should not, why not? Why do those who wish to spend money on the trains and not on motorcycle safety not have blood on their hands, just as we are supposed to believe that those who wish to cut Amtrak’s budget do? Surely if Harley Davidson had a little more money, they could develop systems to save lives. Why, pray, are they being denied that money?

One’s answers to these questions will vary according to one’s ideological outlook and one’s broader political judgment. For my part, I am not wild about the idea of subsidizing Amtrak at all. Others, I know, want the state to underwrite a much wider network of trains, the better to discourage Americans from flying or from driving their cars. Such disagreements are reasonable and, perhaps, inevitable. And yet they are only instructive when indulged dispassionately. It may make us feel good to hover over rapidly cooling bodies and, searching for anything that might assuage our grief, entertain our “what ifs” and nominate our villains. But it is certainly no grounds for the establishment of public policy. Whether they are broke or they are flush, terrible — yes, even fatal — things happen to good people all the time. Accepting that this is inevitable is the first step toward maturity. In Philadelphia, the inevitable happened; and “shoulda, woulda, coulda” were the last words of the charlatans.

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